Arbitration (Alternative Dispute Resolution)
Alternative Dispute Resolution is a setting in which a variety of techniques are used to settle a dispute that does not involve a court trial. Such techniques include “mediation, summary jury trial, minitrial, and arbitration”. [2 Maryland Law Encyclopedia § 1-240 (1998)]
· Arbitration is an inexpensive alternative for parties to resolve a discrepancy outside of court in front of “an arbitrator who is experienced in the parties' field of business and thus sensitive to the parties' individualized needs”. [2 Maryland Law Encyclopedia § 2-242 (1998)]
a. Annotated Codei. Courts and Judicial Proceedings §3-201 to §3-234 – Uniform Arbitration Act
ii. Courts and Judicial Proceedings §12-303 – Appeals from certain interlocutory orders
b. Code of Maryland Regulations (C.O.M.A.R)
i. COMAR 02.01.06 Office of the Attorney General – Consumer Protection – Arbitration Procedure
a. 2 Maryland Law Encyclopedia. Alternative Dispute Resolution §1-§66 (1998). See references below.
b. 3 Maryland Digest 2d, Arbitration pg. 21- 138 (See specific references below)
c. Guide to Judicial Management of Cases of ADR. (R. Niemic, D. Stienstra, and R. Ravitz,) Federal Judicial Center 2001. “The purpose of this publication is to offer guidance to federal trial and bankruptcy courts on when and how to refer appropriate cases to ADR and how to manage cases referred to ADR.” This book was not designed to instruct how to implement and create court ADR programs. (Call # KG 9084.N539)
d. Dispute Resolution Magazine (V 6-7 1999-2001) - Contains numerous articles regarding Alternative Dispute Resolution by different authors. (Call #KF 9084.A15)
e. Alternative Dispute Resolution: The Advocate's Perspective. Case and Materials. (E. Brunet and C. Craver) Michie Law Publishers 1997. – This book was created for a one-semester ADR course for law students. The authors discuss the importance of understanding negotiation in order to fully understand the ADR methods. The book is divided into four parts that discuss and contrast different methods of ADR. The introduction offers a clear definition of Arbitration but part four discusses the method of arbitration in detail. (Call # KF 9084. A7 B78)
f. http://www.courts.state.md.us/macro/index.html - Website for the Mediation and Alternative Conflict Resolution Office (MACRO).
g. http://www.lexisnexis.com - Choose database you want to search and refine search requirements to your needs (Example: selecting a time frame). When searching use terms and phrases such as arbitration, alternative dispute resolution, and conflict resolution. Use search tips to understand guidelines for refining searches.
h. http://www.westlaw.com - When using ‘Key Search' select the topic of Alternative Dispute Resolution then select a subtopic and search materials desired. When using ‘Find' select ‘Find a Database' (or category you desire) and refine your search requirements to your needs. Use suggested terms and phrases mentioned above in (g) when refining your search. Use search tips to understand guidelines for refining searches.
a. Arbitration Agreements
1. MD Code, Courts an Judicial Proceedings §3-206 – A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except “upon grounds that exist at law or in equity for the revocation of a contract. This subtitle does not apply to an arbitration between employers and employees or between their representatives unless it is expressly provided in the agreement that this subtitle shall apply.”
2. Alamira v. Telcor International, Inc. 920 F. Supp. 658. (D. Md 1996) – “Court seeking to enforce arbitration must first decide 1) whether parties agreed to submit to arbitration and 2) which dispute parties agreed to submit to arbitration.”
b. Arbitration Proceedings
1. Validity [2 Maryland Law Encyclopedia. Alternative Dispute Resolution §23 (1998)]
2. Scope [2 Maryland Law Encyclopedia. Alternative Dispute Resolution §24 (1998)] – The scope of an arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally. [See also Hartford Acc. And Indem. Co. v. Scarlett Harbor Associates Ltd, 695 A.2d 153 (1997)].
i. 2 Maryland Law Encyclopedia. Alternative Dispute Resolution §25 (1998) – A person agreed upon by all parties to determine matters of the situation.
ii. MD Code, Courts and Judicial Proceedings §3-217 – “The arbitrator may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and have the power to administer oaths.”
iii. MD Code, Courts and Judicial Proceedings §3-212 – an arbitrator's authority depends on the arbitration agreement. A panel of arbitrators exercise power through majority. (also see 2 Maryland Law Encyclopedia. Alternative Dispute Resolution §28 (1998).
4. Rights of Parties
i. MD Code, Courts and Judicial Proceedings §3-214 – “At arbitration all parties have the right to be heard, present material to the controversy, and to cross examine witnesses. Arbitrators are not bound by technical rules of evidence.”
ii. MD Code, Courts and Judicial Proceedings §3-216 – “All parties have the right to the representation of an attorney, but waiving that right prior to arbitration is ineffective.”
iii. MD Code, Courts and Judicial Proceedings §3-207 – If a party refuses to arbitrate the other party may file an order to arbitrate with the court. “If the opposing party denies existence of an arbitration agreement the court shall proceed expeditiously to determine if an agreement exists.” If an agreement to arbitrate is found the parties are ordered to arbitrate. If no agreement to arbitrate is found the petition is denied.
iv. MD Code, Courts and Judicial Proceedings §3-210 – “ An order for arbitration shall not be refused or an arbitration proceeding stayed on the grounds that the claim in issue lacks merit or bona fides; or because a valid basis for the claim sought to be arbitrated has not been shown.”
v. MD Code, Courts and Judicial Proceedings §3-209 – “A court shall stay any action or proceeding involving an issue subject to arbitration if an petition for order to arbitrate has been filed or an order for arbitration has been made. If the issue subject to arbitration is severable the court may order the stay with respect to this issue only. If a petition to stay has been filed with a court where any action or proceeding concerning arbitration is pending, the court's order to arbitrate shall include the stay.”
c. Arbitration Awards
1. Form of Award
i. MD Code, Courts and Judicial Proceedings §3-219 – The award is to be a written document signed by all parties. The award is to be made within the time set by the agreement. If no time is designated a party may petition the court to set a time. The parties may extend the time for making an award in writing at any time. The arbitrators shall deliver a copy of the award to each party by certified mail, provided in the agreement, or personally.
2. Confirmation of Award
i. MD Code, Courts and Judicial Proceedings §3-227 – A party may petition the court to confirm the award. The court shall comply unless the other party has filed an application to vacate, modify, or correct the award.
ii. MD Code, Courts and Judicial Proceedings §3-228 – If an order confirming, modifying, or correcting an award is granted, a judgment shall be entered in conformity with the order. The judgment may be enforced the same as other judgments. A court may award costs of the petition, the subsequent, proceedings, and disbursements.
iii. Chillum-Adelphi Volunteer Fire Department v. Button and Goode, Inc. 219 A. 2d 801, 242 Md 509(1966) – A court will not review facts of an issue or the law when a suit is brought to enforce an award. The courts will “only question weather proceedings were free from fraud, decision was within limits of issues submitted to arbitration, and arbitration proceedings provided adequate procedural safe guars to assure to all parties a full and fair hearing on merits of controversy.”
3. Grounds to Vacate Award
i. MD Code, Courts and Judicial Proceedings §3-224 – An order to vacate needs to be filed no later than 30 days after the delivery of the award. If a petition alleges corruption, fraud, or other undue means a petition to vacate shall be filed 30 days after the grounds become known or should have become known. (For specific grounds see MD Code, Courts and Judicial Proceedings §3-224 (b) and 1-5). The court shall not vacate the award or refuse to confirm the award on the ground that a court of law or equity could not or would not grant the same relief.
ii. MD Code, Courts and Judicial Proceedings §3-226 – Denial of Petition to Vacate – An award will be enforced following the denial of an application to vacate if no “motion to modify or correct award is pending.”
iii. Rivera v. Thomas, et al. 316 F. Supp. 2d 256 – Discusses: Grounds to vacate award, determination of “adequate and accessible substitute for litigation, and judicial review of award.
4. Modification or Correction of Award
i. MD Code, Courts and Judicial Proceedings §3-222 – A written notice of application to modify or correct an award may be mailed within 20 days after delivery of award. The written application shall give notice to the other party that an objection to such application is to be filed within 10 days.
ii. Kovacs v. Kovacs 633 A. 2d 425 (Md App. 1993) – “Party asserting that error was committed by arbitration panel bears burden of showing, by record, that error occurred, and mere allegations contesting validity of award are insufficient to meet that burden.”
d. Judicial Review
1. Intervention of Court
i. MD Code, Courts and Judicial Proceedings §3-2B-07- A court in this state may not intervene with the proceedings of an international commercial arbitration unless otherwise permitted by this subtitle and the statutes and laws incorporated by this subtitle. “Notwithstanding any other provision of law, the court shall make any determination providing for in this subtitle without a jury.”
i. 2 Maryland Law Encyclopedia. Alternative Dispute Resolution §59 (1998) – An appeal is authorized from an order “refusing a stay or litigation pending arbitration or an order denying a motion to compel arbitration.” Arbitration appeals are governed by Section 16 of the Federal Arbitration Act
ii. MD Code, Courts and Judicial Proceedings §3-2B-08 – Appeal
iii. 2 Maryland Law Encyclopedia. Alternative Dispute Resolution §58-66 – Definitions of Judicial Review Terms.Applications to Particular Situations:
a. MD Code, Courts and Judicial Proceedings §3-206 – 207 – Referenced above under Arbitration Agreement and Rights of Parties.
b. NSC Contractors, Inc v. Borders. 564 A. 2d, 408, 317 Md 394 (1989) – Architect's decision to withhold final certification of payment was economic decision and not purely artistic: thus, dispute arising out of architect's decision was reviewable under broad arbitration provisions of contract.
c. Burton v. Bush. 614 F. 2d 389 Md (1980) – Disputing contract parties who agree to arbitration do not have the right to pre-trial discovery as in litigation.
a. MD Code, Courts and Judicial Proceedings § 3-260– Referenced above under Arbitration Agreement
b. MD Code, Labor and Employment §4-108 (c) – Failure of mediation or arbitration – “When Mediation Services is unable to mediate dispute and a disputant refuses consent for formation of a board or for arbitration by the chief mediator, the Mediation Services shall investigate thoroughly the cause of the dispute” (See (2-3) for guidelines of investigation and publication of findings.)
c. Health Claims
a. MD Code, Courts and Judicial Proceedings Subtitle 2A §3-2A – Health Care Malpractice Claims
b. See Annotated Code of Maryland (2005) Index – Malpractice
c. Weiding v. Crites. 593 A. 2d 1094 Md (1991) – “Employee who worked in doctor's office and who was not a licensed physician or registered or licensed practical nurse, was not a ‘health care provider' within meaning of the Health Care Malpractice Claims Act, and thus could not be compelled to submit to arbitration un the Act.”
d. International Commercial Arbitration.
a. See MD Code, Courts and Judicial Proceedings §§ 3-2B-01- 3-2B-09